Appendix Two: Fair Use Then and Now

The Fair Use Right and the Function of Copyright

The goal of US copyright law is to promote the progress of knowledge and culture. Its best-known feature is protection of copyright owners’ rights, but importantly the law includes protections for the public, too. Copying, quoting, recontextualizing, and reusing existing cultural and informational materials are critically important to creating, spreading, and preserving knowledge and culture, so the law strikes a balance between rightsholder control and public access and reuse.

This balance is part of the social bargain at the heart of our copyright law. Creators get some exclusive rights in new works, not as an end in itself but to encourage them to produce and communicate new knowledge. At the same time, copyright protection is limited to reflect the interests of the law’s primary intended beneficiary—the public. So the statute also reflects the access rights of current and future generations of creators, who may want to refer to or invoke copyrighted culture; librarians, archivists, and curators who collect and preserve culture for current and future users; and scholars, teachers, and students who need access to culture for research, instruction, or study.

The public interest limits on copyright begin with the fact that copyright lasts for a limited time. After that, works enter the public domain and are free for use by all. Even so, the duration of protection stretches for generations, far beyond the useful life of most copyrighted materials.

So, there are other limitations that allow the use of material that still is protected by copyright without permission from or payment to the owner. Otherwise, we would all lose the benefit of new work that builds on the past. Fair use is the most flexible and widely applicable of these limitations.[1]

As Section 107 of the Copyright Act of 1976 provides, “fair use of a copyright work . . . is not an infringement of copyright.”[2]

Fair use has been part of US copyright law for more than 170 years, and was codified in the 1976 Act. Where it applies, fair use is a right and not a mere privilege. The fact that it is asserted procedurally as an affirmative defense should not affect this characterization. Like other rights, fair use derives strength from its flexibility. Rather than following a formula, lawyers and judges assess whether a particular use of copyrighted material is “fair” according to an “equitable rule of reason.” This means taking into account all facts and circumstances to decide whether an unlicensed use of copyrighted material generates social or cultural benefits greater than the cost imposed on the copyright owner. Similarly, practitioners in creative fields can develop analytical structures to evaluate and rely on fair use in the professional situations they encounter regularly.

Fair Use and Education

Turning to fair use in educational practice, the first thing to be said is that copyright law generally favors this category of uses. Thus, for example, even educators who honestly but mistakenly rely on fair use get a significant break under Sec. 504(c) of the Copyright Act, which waives so-called statutory damages under these circumstances for non-profit schools and their employees. At the same time, however, educational use does not constitute a free pass. In 2019, for example, when a Houston high school systematically reproduced copyrighted review sheets, removed copyright information, and put them online for students, the school district ended up settling an infringement case for millions of dollars.

That said, there are few (if any) genuinely useful judicial precedents about educational fair use. Two radically different stories may be advanced to account for this. In one, the dearth of attention to educational fair use is explained by the fact that education’s highly privileged position in the universe of fair use is too fundamental to have required additional legislative attention or attracted much in the way of court challenges. In other words, copyright owners have seldom engaged with the unlicensed use of copyrighted material by educators precisely because they have no strong case, and much to lose in the court of public opinion. In the other account, the explanation is simply that—at least until quite recently—educational uses haven’t generally been a source of particular, sustained concern to copyright owners. Obviously, as the education market grows, that concern is on the rise!

Thus, educators need to know where to look for guidance. Unfortunately, one of the main sources that educators used until recently was the so-called “Classroom Guidelines” that date back to the photocopying wars of the 1970’s. Those guidelines and their various spinoffs are generally useless – or worse – where understanding and implementing today’s fair use is concerned.

Happily, recent judicial decisions still can provide professionals engaged in educational practice – including authors and distributors of OER – strong positive guidance about how to apply the doctrine, by way of analogy. Indeed, there has never been as strong a general judicial consensus about the nature of the fair use doctrine as the one that exists today.

Fair Use and Access to Educational Materials

Since the Copyright Act’s 1978 codification, accessibility in general has had a privileged place in the domain of fair use, and that’s evidenced in part by the language of the legislative history of Section 107, which discusses providing texts to print disabled individuals as a core example of fair use in action. More recently, judicial applications of fair use have emphasized the ways in which fair use can help to assure that students, teachers, and scholars from all kinds can enjoy equal access to learning. For example, Author’s Guild v HathiTrust, 755 F.3d 87 (2d Cir. 2014) held that making a vast corpus of copyrighted books available to learners and researchers was fair use. While resolving one set of issues, HathiTrust invites us to think about other ways that the fair use doctrine can be applied to break down the barriers that face many in achieving equitable access to learning materials. Finally, the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities, was ratified in 2016. The treaty reflects, among other things, a broad consensus on the importance of designing copyright exceptions in national law to facilitate accessibility.

The Developing Law of Fair Use

When Congress inscribed the venerable judge-made fair use doctrine into Section 107, it codified the familiar “four factor” test and also included a preamble, listing examples of uses that were eligible to be treated as fair use (including “criticism, comment, . . . teaching, scholarship, [and] research”). The first decade after the 1976 Copyright Act saw generally cautious and even conservative court opinions interpreting Section 107, calling into question the real utility of the doctrine for those who make culture, or comment on it, and teach about it.

Since the early 1990s, however, the case law has taken a dramatic turn. By 2003, when the US Supreme Court affirmed the strong connection between fair use and First Amendment freedom of expression in Eldred v. Ashcroft, 537 U.S. 186 (2003), the doctrinal landscape had already shifted dramatically. In the intervening time, the courts had indicated that a generally critical consideration in evaluating the fair use factors is whether the use can be considered “transformative”—whether it “adds something new, with a further purpose or different character,” as the Supreme Court put it in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). Since then, cases have reinforced the notion that for a use to be considered “transformative,” it need not— as, in fact, it usually does not—entail a literal modification or revision of the original material. Instead, it is crucial that it has put that material in a new context where it performs a new function – an obvious example being the reproduction of a text or image to illustrate the argument of a chapter in a textbook. The opposite of a transformative use is a substitutional one—a use that merely offers consumers a copy, or a portion, or a version, of the work itself. Understanding the transformative use concept makes fair use much easier to understand and predict.

Where a use is transformative, the first statutory factor (looking to “purpose and character”) will weigh strongly in favor of fair use – even if the new use is “commercial” in character. The second factor (which implicates the nature of the work used) tends to favor transformative uses as well. This factor functions to provide certain imaginative works extra protection from unfair exploitation; however, this concern loses much of its force when they are used for new purposes – especially expository or educational ones. Moreover, where the third factor is concerned, courts will measure the appropriateness of the amount of copyrighted material used against the transformative purpose of that use; thus, in appropriate circumstances, use of an entire work often will qualify.

And crucially, a transformative use is likely to weigh in favor of fair use under the fourth factor directed toward the market harm suffered by the copyright holder. As increasing numbers of courts have recognized, this is because copyright owners are not entitled to control the “transformative markets” for their works. This principle is exemplified by Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006), which involved graphic art reproduced to illustrate a historical narrative, or the recent decision in Marano v. Metro. Museum of Art, 2020 U.S. Dist. LEXIS 122515 (S.D.N.Y. 2020), which involved using a photo of a musician in performance from the museum’s collection to illustrate a largely unrelated essay about musical instruments that appeared on its website.[3]

Fair Use in a Nutshell

To sum up, individuals (like OER authors) who are contemplating the use of unlicensed copyrighted inserts would do well to follow the example of today’s federal judges, who focus, in effect, on two key analytic questions that effectively collapse the four factors:

  • Did the use “transform” the copyrighted material by using it for a purpose significantly different from that of the original, or did it do no more than provide consumers with a “substitute” for the original?
  • Was the material taken appropriate in kind and amount, considering the nature of both the copyrighted work and the use?

If the answer to these two questions is clearly in the affirmative, a court is likely to find a use fair.

Obviously, educators and (in particular) authors and distributors of OER should generally fare well under this rubric. That said, a few points are worth reiterating in conclusion.

The Fair Use Narrative Matters

Those exercising the right of fair use need to know what the new function, purpose, or context of their use is, and why they are using the amount they are. This can be done formally, for instance by keeping notes, or informally. The ability of users to explain clearly what they were doing and why has been decisive in many fair use cases. In the unlikely event that an OER creator receives a request to “cease and desist,” the ability to explain their own fair use rationale is an extremely helpful deterrent to litigation.

Good Faith Matters

While it does not appear in the text of the statute governing fair use, courts, lawyers, and potential litigants often take overall good faith into account. As this Code makes clear, creators of OER can show good faith in a number of ways. Having a clear story to tell about why a particular copyrighted insert has been incorporated is one way of demonstrating good faith. Others include providing robust attribution and acknowledging reliance on fair use when it is employed.

Fair Use Is Consistent

Fair use is flexible and context-sensitive, not arbitrary. Fair use treats similar uses similarly. Once you have established that fair use applies to one use of a copyright insert in an OER, that same logic applies the next time you do it. In this way, fair use can become part of daily practice, and practitioners can rely on it to protect them consistently from case to case.

Fair Use Is Predictable

Choices about whether or not to exercise fair use always involve judgement, and sometimes the flexibility of fair use can lead users to wish for clearer rules or brighter lines. In most cases, however, it is also quite predictable. Moreover, it can be made more so. Even without case law specifically addressing a use, judges and lawyers consider whether the user acted reasonably in light of standards of accepted practice. One way of creating better understanding of what fair use permits is, therefore, to document best practices, as this Code attempts to do.

Peer Consensus About Practice Matters

A documented consensus about fair use in OER is valuable to potential fair users (“What do my peers regard as the right thing to do?”). In addition, it is valuable to potential challengers (“Am I looking at outlier behavior or something that is regular practice in the field?”). And finally, it is valuable to judges (“What do experts in this community regard as good practice?”).


  1. Sections 110(1) and (2) of the Copyright Act provide some narrowly defined educational exceptions – relatively useful where face-to-face teaching in a physical classroom is concerned, and somewhat less so for lessons delivered by technological means, including over the Internet. They have no direct bearing on the creation of OER or other learning materials for general circulation. On the other hand, the existence of these does not limit the application of fair use in such situations.
  2. In its entirety, Section 107 reads:
    Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
    1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    2. the nature of the copyrighted work;
    3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    4. the effect of the use upon the potential market for or value of the copyrighted work.
    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
  3. By contrast, where a use is deemed nontransformative, the market-harm test of factor four is likely to play a more important role in the analysis. Thus, for example, a textbook author’s failure to license biographical summaries of historical figures found on a proprietary website could weigh against a fair use finding. Alternatively, the reproduction of an “orphan” work that is not being actively exploited might be deemed fair on the grounds that the use didn’t interfere with any meaningful market.

License

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Code of Best Practices in Fair Use for Open Educational Resources by Meredith Jacob, Peter Jaszi, Prudence S. Adler, and William Cross is licensed under a Creative Commons Attribution 4.0 International License, except where otherwise noted.

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